Exhibit 2.1
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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Dated as of June 21, 2001,
among
REGISTRY HOLDING COMPANY, INC.,
REDWOOD ACQUISITION CORP.
and
RENAISSANCE WORLDWIDE, INC.
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Table of Contents
Page
ARTICLE I
The Merger............................................................................. 1
Section 1.01. The Merger......................................................... 1
Section 1.02. Closing............................................................ 2
Section 1.03. Effective Time..................................................... 2
Section 1.04. Effects............................................................ 2
Section 1.05. Articles of Organization and By-laws............................... 2
Section 1.06. Section 1.06. Directors............................................ 2
Section 1.07. Section 1.07. Officers............................................. 2
ARTICLE II
Effect on the Capital Stock of the Constituent Corporations; Exchange of Certificates.. 3
Section 2.01. Effect on Capital Stock............................................ 3
Section 2.02. Exchange of Certificates........................................... 4
ARTICLE III
Representations and Warranties of the Company.......................................... 7
Section 3.01. Organization. Standing and Power................................... 7
Section 3.02. Company Subsidiaries; Equity Interests............................. 7
Section 3.03. Capital Structure.................................................. 7
Section 3.04. Authority; Execution and Delivery; Enforceability.................. 8
Section 3.05. No Conflicts: Consents............................................. 9
Section 3.06. SEC Documents; Undisclosed Liabilities............................. 10
Section 3.07. Information Supplied............................................... 11
Section 3.08. Absence of Certain Changes or Events............................... 11
Section 3.09. Taxes.............................................................. 12
Section 3.10. ERISA Compliance................................................... 13
Section 3.11. Litigation......................................................... 14
Section 3.12. Compliance with Applicable Laws.................................... 15
Section 3.13. Intellectual Property.............................................. 15
Section 3.14. Brokers............................................................ 16
Section 3.15. Opinion of Financial Advisor....................................... 16
Section 3.16. Stock Options and Employee Stock Purchase Plan..................... 16
ARTICLE IV
Representations and Warranties of Parent and Sub....................................... 16
Section 4.01. Organization, Standing and Power................................... 17
Section 4.02. Sub................................................................ 17
Section 4.03. Authority; Execution and Delivery; Enforceability.................. 17
Section 4.04. No Conflicts; Consents............................................. 17
Section 4.05. Information Supplied............................................... 18
Section 4.06. Brokers............................................................ 18
Section 4.07. Financial Ability to Perform....................................... 18
ARTICLE V
Covenants Relating to Conduct of Business.............................................. 19
Section 5.01. Conduct of Business................................................ 19
Section 5.02. No Solicitation by Company......................................... 23
ARTICLE VI
Additional Agreements.................................................................. 25
Section 6.01. Preparation of Proxy Statement; Stockholders Meeting............... 25
Section 6.02. Access to Information; Confidentiality............................. 26
Section 6.03. Reasonable Efforts; Notification................................... 26
Section 6.04. Benefit Plans...................................................... 27
Section 6.05. Indemnification; D&O Insurance, etc................................ 27
Section 6.06. Fees and Expenses.................................................. 29
Section 6.07. Public Announcements............................................... 30
Section 6.08. Actions Respecting Commitment Letters; Financing................... 30
Section 6.09. Rights Agreement................................................... 31
Section 6.10. Stockholder Litigation............................................. 31
ARTICLE VII
Conditions Precedent................................................................... 32
Section 7.01. Conditions to Each Party's Obligation To Effect The Merger......... 32
Section 7.02. Conditions Precedent to Parent's and Sub's Obligations............. 32
Section 7.03. Conditions to Obligation of Company................................ 33
ARTICLE VIII
Termination, Amendment and Waiver...................................................... 33
Section 8.01. Termination........................................................ 33
Section 8.02. Procedure and Effect of Termination................................ 35
Section 8.03. Amendment.......................................................... 35
Section 8.04. Extension; Waiver.................................................. 35
Section 8.05. Procedure for Termination, Amendment, Extension or Waiver.......... 36
ARTICLE IX
General Provisions..................................................................... 36
Section 9.01. Nonsurvival of Representations and Warranties...................... 36
Section 9.02. Notices............................................................ 36
Section 9.03. Definitions........................................................ 37
Section 9.04. Definitions Cross Reference Table.................................. 38
Section 9.05. Interpretation..................................................... 40
Section 9.06. Severability....................................................... 40
Section 9.07. Counterparts....................................................... 40
Section 9.08. Entire Agreement; No Third-Party Beneficiaries..................... 40
Section 9.09. Governing Law...................................................... 40
Section 9.10. Assignment......................................................... 41
Section 9.11. Enforcement........................................................ 41
Section 9.12. Consents........................................................... 41
Section 9.13. Headings........................................................... 41
Section 9.14. Parent Guarantee................................................... 41
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of June 21, 2001,
among Registry Holding Company, Inc., a Delaware corporation ("Parent"), Redwood
Acquisition Corp., a Massachusetts corporation ("Sub") and a wholly owned
Subsidiary (as defined in Section 9.03) of Parent, and Renaissance Worldwide,
Inc., a Massachusetts corporation (the "Company").
WHEREAS the respective Boards of Directors of Parent, Sub and the Company
have approved the acquisition of the Company by Parent on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS a special committee of the Board of Directors of the Company
comprised of the Company's independent directors (the "Special Committee") has
unanimously approved the acquisition of the Company by Parent on the terms and
subject to the conditions set forth in this Agreement;
WHEREAS the respective Boards of Directors of Parent, Sub and the Company
have approved the merger (the "Merger") of Sub with and into the Company, on the
terms and subject to the conditions set forth in this Agreement, whereby,
subject to the exceptions set forth below, each issued share of Common Stock, no
par value per share, of the Company ("Company Common Stock") shall be converted
into the right to receive cash consideration as specified below;
WHEREAS substantially concurrently herewith and as a condition and
inducement to the Company's willingness to enter into this Agreement, the chief
executive officer of the Company, who holds not less than 11,716,070 outstanding
shares of Company Common Stock, is entering into a Support Agreement and
Guarantee in the form of Exhibit A hereto (the "Support Agreement"); and
WHEREAS Parent, Sub and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
The Merger
Section 1.01. The Merger. On the terms and subject to the satisfaction or
waiver of the conditions set forth in this Agreement, and in accordance with the
Massachusetts Business Corporation Law (the "BCL"), Sub shall be merged with and
into the Company at the Effective Time (as defined in Section 1.03). At the
Effective Time, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation (the "Surviving
Corporation"). The Surviving Corporation shall possess all the rights,
privileges, immunities, powers and franchises of the Company and Sub,
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and the Surviving Corporation shall by operation of law become liable for all of
the debts, liabilities and duties of the Company and Sub. The name of the
Surviving Corporation shall continue to be Redwood, Inc. and the purpose thereof
shall be as set forth in Section 2 of the Articles of Organization of the
Surviving Corporation.
Section 1.02. Closing. The closing (the "Closing") of the Merger shall take
place at the offices of Xxxxxxx Xxxx LLP in Boston, MA at 10:00 a.m. on the
second business day following the satisfaction (or, to the extent permitted by
Law, waiver by the appropriate parties) of the conditions set forth in Article
VII, or at such other place, time and date as shall be agreed in writing between
Parent and the Company. The date on which the Closing occurs is referred to in
this Agreement as the "Closing Date".
Section 1.03. Effective Time. Prior to the Closing, Parent shall prepare
and give the Company and its counsel the opportunity to review, and on the
Closing Date or as soon as practicable thereafter Parent shall file with the
Secretary of State of The Commonwealth of Massachusetts, articles of merger or
other appropriate documents (in any such case, the "Articles of Merger")
executed in accordance with the relevant provisions of the BCL and shall make
all other filings or recordings required under the BCL. The Merger shall become
effective at such time as the Articles of Merger are duly filed with such
Secretary of State, or at such other time as Parent and the Company shall agree
and specify in the Articles of Merger (the time the Merger becomes effective
being the "Effective Time").
Section 1.04. Effects. The Merger shall have the effects set forth in
Section 80 of the BCL.
Section 1.05. Articles of Organization and By-laws.
(a) The Articles of Organization of the Company shall be amended and
restated at the Effective Time to read in the form of Exhibit B, and, as so
amended, such Articles of Organization shall be the Articles of
Organization of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable Law.
(b) Subject to Section 6.05, the By-laws of the Company as in effect
immediately prior to the Effective Time shall be the By-laws of the
Surviving Corporation until thereafter changed or amended as provided
therein or by applicable Law.
Section 1.06. Directors. At the Closing, Parent shall designate the
directors of the Surviving Corporation and such directors shall hold office
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
Section 1.07. Officers. At the Closing, Parent shall designate the officers
of the Surviving Corporation and such officers shall hold office until the
earlier of their
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resignation or removal or until their respective successors are duly elected or
appointed and qualified, as the case may be.
ARTICLE II
Effect on the Capital Stock of the Constituent Corporations;
Exchange of Certificates
Section 2.01. Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder of any shares of
Company Common Stock or any shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of capital
stock of Sub shall be converted into and become one fully paid and non-
assessable share of common stock, no par value per share, of the Surviving
Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. Each share
of Company Common Stock that is owned directly by the Company, any
Subsidiary of the Company, Parent or Sub shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and
no other consideration shall be delivered or deliverable in exchange
therefor.
(c) Conversion of Company Common Stock. Subject to Sections 2.01(b)
and 2.01(d), each issued share of Company Common Stock shall be converted
into the right to receive $1.65 in cash, subject to adjustment for any
stock split, stock dividend or combination of stock that may occur from the
date hereof and prior to the Effective Time. The aggregate cash payable
upon the conversion of shares of Company Common Stock pursuant to this
Section 2.01(c) is referred to as the "Merger Consideration". As of the
Effective Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing any such shares of
Company Common Stock shall cease to have any rights with respect thereto,
except the right to receive Merger Consideration upon surrender of such
certificate in accordance with Section 2.02, without interest.
(d) Appraisal Rights. Notwithstanding anything in this Agreement to
the contrary, shares ("Appraisal Shares") of Company Common Stock that are
outstanding immediately prior to the Effective Time and that are held by
any Person who is entitled to demand and properly demands appraisal of such
Appraisal Shares pursuant to, and who complies in all respects with,
Sections 86 through 97 of the BCL (the "Appraisal Provisions") shall not be
converted into Merger Consideration as provided in Section 2.01(c), but
rather the holders of Appraisal Shares shall be entitled to payment of the
fair value of such Appraisal Shares in accordance with the Appraisal
Provisions; provided, however, that if
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any such holder shall fail to perfect or otherwise shall waive, withdraw or
lose the right to appraisal under the Appraisal Provisions, then the right
of such holder to be paid the fair value of such holder's Appraisal Shares
shall cease and such Appraisal Shares shall be deemed to have been
converted as of the Effective Time into, and to have become exchangeable
solely for the right to receive, Merger Consideration as provided in
Section 2.01(c), without interest, upon surrender of such certificate in
accordance with the provisions of Section 2.02. Company shall give Parent
(i) prompt notice of any demand for payment of fair market value received
by Company, the withdrawal of any such demand, and any other instrument
served pursuant to the Appraisal Provisions and received by Company and
(ii) the opportunity to direct all negotiations and proceedings with
respect to any demand for payment of fair market value under the Appraisal
Provisions. Company shall not, except with the prior written consent of
Parent, make any payment with respect to any demand for payment of fair
market value or offer to settle or settle any such demand, or agree to do
any of the foregoing.
(e) Company Stock Options. Parent and the Company agree that, in
accordance with the provisions of the Company Stock Option Plans (as
defined in Section 3.16), each outstanding option to purchase Company
Common Stock under any Company Stock Option Plan shall either (i) be
terminated as of the Effective Time or (ii) from and after the Effective
Time entitle the holder thereof to receive, upon exercise in accordance
with the terms thereof (including but not limited to any terms with respect
to vesting), an amount in cash (less applicable withholding taxes) equal to
the product of (x) the number of shares of Company Common Stock previously
subject to such stock option multiplied by (y) the amount, if any, by which
$1.65 (subject to adjustment for any stock split, stock dividend or
combination of stock that may occur from the date hereof and prior to the
Effective Time) exceeds the per share exercise price of such stock option.
In the event and to the extent that any Company Stock Option Plan permits
or requires the Company Board (or any committee thereof) to exercise
discretion with respect to outstanding stock options, the Company Board (or
such committee, as the case may be) will exercise such discretion with the
consent of Parent, which consent will not unreasonably be withheld.
Section 2.02. Exchange of Certificates.
(a) Paying Agent. Prior to the Effective Time, Parent shall select a
bank or trust company in the United States, reasonably acceptable to the
Company, to act as paying agent (the "Paying Agent") for the payment of the
Merger Consideration upon surrender of certificates representing Company
Common Stock. Parent shall take all steps necessary to provide, or to
enable and cause the Sub to provide, to the Paying Agent prior to the
Effective Time cash necessary to pay for the shares of Company Common Stock
converted into the right to receive cash pursuant to Section 2.01(c) (such
cash being hereinafter referred to as the "Exchange Fund"). If for any
reason (including losses) the Exchange Fund is inadequate to pay the
amounts to which holders of shares of
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Company Common Stock shall be entitled under Section 2.01(c), Parent shall
take all steps necessary to enable or cause the Surviving Corporation
promptly to deposit in trust additional cash with the Paying Agent
sufficient to make all payments required under Section 2.01(c), and Parent
and the Surviving Corporation shall in any event be liable for payment
thereof. The Exchange Fund shall not be used for any purpose except as
expressly provided in this Agreement.
(b) Exchange Procedures. Promptly after the Effective Time (but in no
event later than five business days following such date), the Surviving
Corporation shall cause the Paying Agent to mail to each holder of record
of a certificate or certificates (the "Certificates") that immediately
prior to the Effective Time represented outstanding shares of Company
Common Stock whose shares were converted into the right to receive Merger
Consideration pursuant to Section 2.01, (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to
the Paying Agent and shall be in such form and have such other provisions
as Parent may reasonably specify), and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for Merger
Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent, together with such letter of transmittal, duly executed, and
such other documents as may reasonably be required by the Paying Agent, the
holder of such Certificate shall be entitled to receive in exchange
therefor the amount of cash into which the shares of Company Common Stock
theretofore represented by such Certificate shall have been converted
pursuant to Section 2.01, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Company
Common Stock that is not registered in the transfer records of the Company,
payment may be made to a Person other than the Person in whose name the
Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the
Person requesting such payment shall pay any transfer or other taxes
required by reason of the payment to a Person other than the registered
holder of such Certificate or establish to the satisfaction of Parent that
such tax has been paid or is not applicable. Until surrendered as
contemplated by this Section 2.02, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the amount of cash, without interest, into which the shares
of Company Common Stock theretofore represented by such Certificate have
been converted pursuant to Section 2.01. If any holder of shares of Company
Common Stock shall be unable to surrender such holder's Certificates
because such Certificates have been lost, mutilated or destroyed, such
holder may deliver in lieu thereof an affidavit and indemnity bond in form
and substance and with surety reasonably satisfactory to the Surviving
Corporation. No interest shall be paid or accrue on the cash payable upon
surrender of any Certificate.
(c) No Further Ownership Rights in Company Common Stock. The Merger
Consideration paid in accordance with the terms of this Article II upon
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conversion of any shares of Company Common Stock shall be deemed to have
been paid in full satisfaction of all rights pertaining to such shares of
Company Common Stock, and after the Effective Time there shall be no
further registration of transfers on the stock transfer books of the
Surviving Corporation of shares of Company Common Stock that were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, any certificates formerly representing shares of Company
Common Stock are presented to the Surviving Corporation or the Paying Agent
for any reason, they shall be canceled and exchanged as provided in this
Article II.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund
that remains undistributed to the holders of Company Common Stock for six
months after the Effective Time shall be delivered to Parent, upon demand,
and any holder of Company Common Stock who has not theretofore complied
with this Article II shall thereafter look only to Parent for payment of
its claim for Merger Consideration.
(e) No Liability. None of Parent, Sub, the Company or the Paying Agent
shall be liable to any Person in respect of any cash from the Exchange Fund
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar Law. If any Certificate has not been
surrendered prior to five years after the Effective Time (or immediately
prior to such earlier date on which Merger Consideration in respect of such
Certificate would otherwise escheat to or become the property of any
Governmental Entity (as defined in Section 3.05(b))), any such shares,
cash, dividends or distributions in respect of such Certificate shall, to
the extent permitted by applicable Law, become the property of the
Surviving Corporation, free and clear of all claims or interest of any
Person previously entitled thereto.
(f) Investment of Exchange Fund. The Paying Agent shall invest any
cash included in the Exchange Fund, as directed by Parent, on a daily
basis. Any interest and other income resulting from such investments shall
be paid to Parent.
(g) Withholdings. Parent shall be entitled to deduct and withhold from
the consideration otherwise payable to any holder of Company Common Stock
pursuant to this Agreement such amounts as may be required to be deducted
and withheld with respect to the making of such payment under the Code (as
defined in Section 3.10(b)), or under any provision of state, local or
foreign tax Law.
(h) Charges and Expenses. The Surviving Corporation shall pay all
charges and expenses, including those of the Paying Agent, in connection
with the exchange of cash for shares of Company Common Stock.
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ARTICLE III
Representations and Warranties of the Company
Company represents and warrants to each of Parent and Sub that, except as
indicated in the applicable section of the Disclosure Schedule furnished by
Company to Parent prior to the execution of this Agreement (the "Company
Disclosure Schedule") corresponding to the Sections and subsections set forth
below:
Section 3.01. Organization. Standing and Power. Each of the Company and
each of its Subsidiaries (the "Company Subsidiaries") is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and has full corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals, and
has made all filings, registrations and declarations, in each case whether
domestic or foreign, necessary to enable it to own, lease or otherwise hold its
properties and assets and to conduct its businesses as presently conducted, in
each case other than such franchises, licenses, permits, authorizations,
approvals, filings, registrations and declarations the lack of which,
individually and in the aggregate, has not had and would not reasonably be
expected to have a Company Material Adverse Effect (as defined in Section 9.03).
The Company and each Company Subsidiary is duly qualified to do business in each
jurisdiction where the nature of its business or their ownership or leasing of
its properties make such qualification necessary except where the failure to so
qualify has not had and would not reasonably be expected to have a Company
Material Adverse Effect. The Company has made available to Parent true and
complete copies of the articles of organization of the Company, as amended to
the date of this Agreement (as so amended, the "Company Charter"), and the by-
laws of the Company, as amended to the date of this Agreement (as so amended,
the "Company By-laws"), and the comparable charter and organizational documents
of each Company Subsidiary, in each case as amended through the date of this
Agreement.
Section 3.02. Company Subsidiaries; Equity Interests. The Company
Disclosure Schedule lists each Company Subsidiary and its jurisdiction of
organization. All of the outstanding shares of capital stock of each Company
Subsidiary have been validly issued and are fully paid and nonassessable and,
except as set forth in the Company Disclosure Schedule, are owned by the
Company, free and clear of all pledges, liens, charges, mortgages, encumbrances
and security interests of any kind or nature whatsoever except for those
pledges, liens, charges, mortgages, encumbrances and security interests that
have not and would not reasonably be expected to have a Company Material Adverse
Effect (collectively, "Liens").
Section 3.03. Capital Structure. The authorized capital stock of the
Company consists of 99,000,000 shares of Company Common Stock and 99,000 shares
of Series A Preferred Stock, par value $0.10 per share (the "Series A Preferred
Stock" and, together with the Company Common Stock, the "Company Capital
Stock"). At the close of business on June 15, 2001: (i) 52,567,027 shares of
Company Common Stock were issued and outstanding, (ii) 5,192,812 shares of
Company Common Stock were held by
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the Company in its treasury, (iii) 4,977,780 shares of Company Common Stock were
subject to outstanding options to purchase Compa ny Common Stock (the "Company
Stock Options"), (iv) 1,524,653 shares of Company Common Stock were reserved for
issuance pursuant to the Company Stock Purchase Plan and (v) 99,000 shares of
Series A Preferred Stock were reserved for issuance (but not issued or
outstanding) in connection with the rights (the "Company Rights") issued
pursuant to the Rights Agreement dated as of June 13, 2000 (as amended and in
effect as of the date hereof, the "Company Rights Agreement"), between the
Company and Fleet National Bank, as Rights Agent. Except as set forth above, at
the close of business on June 15, 2001, no shares of capital stock or other
voting securities of the Company were issued, reserved for issuance or
outstanding. All outstanding shares of Company Capital Stock are, and all such
shares that may be issued prior to the Effective Time will be when issued, duly
authorized, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the BCL, the Company Charter, the Company By-laws or any Contract (as defined in
Section 3.05(a)) to which the Company is a party or otherwise bound. There are
not any bonds, debentures, notes or other indebtedness of the Company having the
right to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which holders of Company Common Stock may vote
("Voting Company Debt"). Except as set forth above or referred to in Section
3.16, and except pursuant to the GovConnect, Inc. 2000 Stock Incentive Plan, as
of the date of this Agreement, there are not any options, warrants, rights,
convertible or exchangeable securities, "phantom" stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company or any Company
Subsidiary is a party or by which any of them is bound (i) obligating the
Company or any Company Subsidiary to issue or sell, or cause to be issued or
sold, additional shares of capital stock or other equity interests in, or any
security convertible or exercisable for or exchangeable into any capital stock
of or other equity interest in, the Company or of any Company Subsidiary or any
Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to
issue, grant, extend or enter into any such option, warrant, right, security,
commitment, Contract, arrangement or undertaking. As of the date of this
Agreement, there are not any outstanding contractual obligations of the Company
or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares
of capital stock of the Company or any Company Subsidiary. The Company has made
available to Parent a complete and correct copy of the Company Rights Agreement,
as amended to the date of this Agreement.
Section 3.04. Authority; Execution and Delivery; Enforceability.
(a) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to the Company Stockholder
Approval (as defined in Section 3.04(c)) with respect to the Merger if
required by Law (as defined in Section 3.05(a)), to consummate the
transactions contemplated hereby. The execution and delivery by the Company
of this Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of the
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Company, subject, in the case of the Merger, to receipt of the Company
Stockholder Approval. The Company has duly executed and delivered this
Agreement, and this Agreement constitutes its legal, valid and binding
obligation (subject to the Company Stockholder Approval with respect to the
Merger if required by Law), enforceable against it in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of the principles of
equity (regardless of whether enforceability is considered in a proceeding
in equity or at law).
(b) Each of the Board of Directors of Company (the "Company Board")
and the Special Committee, in each case at a meeting duly called and held,
duly and unanimously adopted votes (i) approving this Agreement and the
Merger, (ii) determining that as of the date of this Agreement the terms of
the Merger are fair to and in the best interests of Company and its
stockholders, and (iii) as of the date of this Agreement recommending that
Company's stockholders approve this Agreement. Such votes are sufficient to
render inapplicable to Parent and Sub and this Agreement and the
transactions contemplated hereby the provisions of Chapter 110C of the BCL
(assuming the requirement that the terms of the Merger be furnished to
shareholders is satisfied). No other Massachusetts takeover statute or
similar statute or regulation, and to the Company's Knowledge no takeover
statute or similar statute or regulation of any other state, applies or
purports to apply to Company with respect to this Agreement or the
transactions contemplated hereby.
(c) The only vote of holders of any class or series of Company Capital
Stock necessary to approve and adopt this Agreement and the Merger is the
approval of this Agreement by the holders of not less than seventy-five
percent of the outstanding Company Common Stock (the "Company Stockholder
Approval").
Section 3.05. No Conflicts: Consents.
(a) Except as set forth in the Company Disclosure Schedule, the
execution and delivery by the Company of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation under, or
result in the creation of any Lien upon any of the properties or assets of
the Company or any Company Subsidiary under, or result in any grant of
additional rights to any party under, any provision of (i) the Company
Charter, the Company By-laws or the comparable charter or organizational
documents of any Company Subsidiary, (ii) any contract, lease, license,
indenture, note, bond, agreement, permit, concession, franchise or other
instrument (a "Contract") to which the Company or any Company Subsidiary is
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a party or by which any of their respective properties or assets is bound
or (iii) subject to the filings and other matters referred to in Section
3.05(b), any judgment, order, injunction or decree, domestic or foreign
("Judgment"), or statute, law (including common law), legislation,
interpretation, ordinance, rule or regulation, domestic or foreign ("Law"),
applicable to the Company or any Company Subsidiary or their respective
properties or assets, other than, in the case of clauses (ii) and (iii)
above, any such items that, individually and in the aggregate, have not had
and would not reasonably be expected to have a Company Material Adverse
Effect.
(b) No consent, approval, license, permit, order or authorization
("Consent") of, or registration, declaration or filing with, any Federal,
state, local or foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (each, a "Governmental Entity") is
required to be obtained or made by or with respect to Company or any
Company Subsidiary in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than (i) if required, compliance with and filing
of a pre-merger notification report under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), (ii) the filing with
the U.S. Securities and Exchange Commission (the "SEC") of a proxy
statement relating to the approval of this Agreement by the Company's
stockholders (the "Proxy Statement"), (iii) the filing of the Articles of
Merger with the Secretary of State of The Commonwealth of Massachusetts and
appropriate documents with the relevant authorities of the other
jurisdictions in which the Company is qualified to do business, (iv)
compliance with and filings under the Laws of any foreign jurisdictions, if
and to the extent required, and (v) such other items that, individually and
in the aggregate, have not had and would not reasonably be expected to have
a Company Material Adverse Effect.
(c) The Company and the Company Board have taken all action necessary
to (i) render the Company Rights inapplicable to this Agreement and the
transactions contemplated hereby and (ii) ensure that (A) neither Parent
nor any of its stockholders, Affiliates or associates is or will become an
"Acquiring Person" (as defined in the Company Rights Agreement) by reason
of this Agreement or the Merger), (B) a "Distribution Date" (as defined in
the Company Rights Agreement) shall not occur by reason of this Agreement
or the Merger and (C) the Company Rights shall expire immediately prior to
the Effective Time.
Section 3.06. SEC Documents; Undisclosed Liabilities. The Company has filed
all reports, schedules, forms, statements and other documents required to be
filed by the Company with the SEC since January 1, 1999 (the "Company SEC
Documents"). As of its respective date, each Company SEC Document complied in
all material respects with the requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or the Securities Act of 1933, as amended
(the "Securities Act"), as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to such
10
Company SEC Document, and did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The consolidated financial statements of the Company included in
the Company SEC Documents comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") (except, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present, in all material respects, the consolidated
financial position of the Company and the Company Subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the Filed Company SEC
Documents (as defined in Section 3.08), as of the date of this Agreement neither
the Company nor any Company Subsidiary has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) required by GAAP to
be set forth on a consolidated balance sheet of the Company and the Company
Subsidiaries or in the notes thereto, other than liabilities or obligations
incurred since the date of the most recent financial statements included in the
Filed Company SEC Documents in the ordinary course of business consistent with
prior practice or which, individually and in the aggregate, would not reasonably
be expected to have a Company Material Adverse Effect.
Section 3.07. Information Supplied. None of the information supplied or to
be supplied by the Company for inclusion or incorporation by reference in the
Proxy Statement will, at the date it is first mailed to the Company's
stockholders or at the time of the Company Stockholders Meeting (as defined in
Section 6.01(a)), contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder, except that no representation is made by the Company with respect to
statements made or incorporated by reference therein based on information
supplied in writing by Parent or Sub for inclusion or incorporation by reference
therein.
Section 3.08. Absence of Certain Changes or Events. Except as disclosed in
the Company SEC Documents filed and publicly available prior to the date of this
Agreement (the "Filed Company SEC Documents") or in the Company Disclosure
Schedule, from December 30, 2000 to the date of this Agreement, the Company has
conducted its business only in the ordinary course, and during such period there
has not been:
11
(i) any event, change, effect or development that, individually or
in the aggregate, has had or would reasonably be expected to
have a Company Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with
respect to any Company Capital Stock or any repurchase for value
by the Company of any Company Capital Stock;
(iii) any split, combination or reclassification of any Company
Capital Stock or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of or in
substitution for shares of Company Capital Stock;
(iv) (A) any granting by the Company or any Company Subsidiary to any
current or former director or executive officer of the Company
or any Company Subsidiary of any material increase in their
compensation, except to the extent required under employment
agreements in effect as of the date of the most recent audited
financial statements included in the Filed Company SEC
Documents, (B) any granting by the Company or any Company
Subsidiary to any such director or executive officer of any
material increase in severance or termination pay, except as was
required under any employment, severance or termination policy,
practice or agreements in effect as of the date of the most
recent audited financial statements included in the Filed
Company SEC Documents or (C) any entry by the Company or any
Company Subsidiary into, or any material amendment of, any
employment, severance or termination agreement with any such
director or executive officer;
(v) any change in accounting methods, principles or practices by the
Company or any Company Subsidiary materially affecting the
consolidated assets, liabilities or results of operations of the
Company, except insofar as may have been required by a change in
GAAP; or
(vi) any material elections with respect to Taxes (as defined in
Section 3.09) by the Company or any Company Subsidiary or
settlement or compromise by the Company or any Company
Subsidiary of any material Tax liability or refund.
Section 3.09. Taxes.
(a) Each of the Company and each Company Subsidiary (for such periods
as each Subsidiary was owned, directly or indirectly, by the Company) has
timely filed, or has caused to be timely filed on its behalf, all Tax
Returns (as
12
defined in Section 3.09(d)) required to be filed by it (taking into account
any extensions of time for filing such Tax Returns), and has paid all Taxes
(as defined in Section 3.09(d)) shown thereon as owing, except where the
failure to file Tax Returns or to pay Taxes has not had and would not
reasonably be expected to have a Company Material Adverse Effect.
(b) The most recent financial statements contained in the Filed
Company SEC Documents reflect an adequate reserve (in accordance with GAAP)
for all Taxes payable by the Company and the Company Subsidiaries for all
Taxable periods and portions thereof through the date of such financial
statements (in addition to any reserve for deferred taxes established to
reflect timing differences between book and tax income).
(c) There are no material Liens for Taxes (other than for current
Taxes not yet due and payable) on the assets of the Company or any Company
Subsidiary.
(d) For purposes of this Agreement:
"Taxes" includes all forms of taxation imposed by any Federal, state,
local, foreign or other Governmental Entity, including income, franchise,
property, sales, use, excise, employment, unemployment, payroll, social
security, estimated, value added, ad valorem, transfer, recapture, withholding
and other Taxes of any kind, including all interest, penalties and additions
thereto.
"Tax Return" means all Federal, state, local, provincial and foreign Tax
returns, declarations, statements, reports, schedules, forms and information
returns and any amended Tax return relating to Taxes.
Section 3.10. ERISA Compliance.
(a) The Company Disclosure Schedule contains a list of all material
"employee pension benefit plans" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
(sometimes referred to herein as "Company Pension Plans"), "employee
welfare benefit plans" (as defined in Section 3(1) of ERISA), a stock
bonus, stock purchase, stock option, restricted stock or similar equity-
based plan, and any other deferred-compensation, retirement, welfare-
benefit, bonus, incentive, severance or fringe benefit plan or arrangement
maintained, or contributed to, by the Company or any Company Subsidiary for
the benefit of any current or former employees, officers or directors of
the Company or any Company Subsidiary (together, the "Company Benefit
Plans"). The Company has made available to Parent true, complete and
correct copies of (i) each Company Benefit Plan (or, in the case of any
unwritten Company Benefit Plan, a brief description thereof), (ii) the most
recent annual report on Form 5500 filed with the Internal Revenue Service
with respect to each Company Benefit Plan (if any such report was
required), (iii) the most recent summary plan description for each Company
Benefit Plan for which such
13
summary plan description is required and (iv) each trust agreement and
group annuity contract relating to any Company Benefit Plan, if any.
(b) All Company Benefit Plans are in compliance in all material
respects with applicable Law (including, where applicable, the Code and
ERISA), except such noncompliance as has not had and would not reasonably
be expected to have a Company Material Adverse Effect. All Company Pension
Plans are intended to be tax-qualified under Section 401 (a) of the
Internal Revenue Code of 1986, as amended (the "Code") and, except as set
forth in the Company Disclosure Schedule, the Company has no reason to
believe that any of the Company Pension Plans are not so qualified under
Section 401 (a) of the Code. There is no pending or, to the Knowledge of
the Seller, threatened lawsuit, material claim or other material
controversy relating to any Company Benefit Plan, other than claims for
benefits in the normal course.
(c) No Company Pension Plan is a "defined benefit plan" within the
meaning of Section 3(35) of ERISA or is subject to the minimum funding
standards of Section 412 of the Code or Section 302 of ERISA, and neither
the Company nor any Company Subsidiary has any actual or contingent
liability under any defined benefit plan which it (or any Affiliate)
previously maintained or contributed to (or was obligated to maintain or
contribute to). None of the Company, any Company Subsidiary, any officer of
the Company or any Company Subsidiary or any of the Company Benefit Plans
which are subject to ERISA, including the Company Pension Plans, any trusts
created thereunder or any trustee or administrator thereof, has engaged in
a non-exempt "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary
responsibility that could subject the Company, any Company Subsidiary or
any officer of the Company or any Company Subsidiary to any material tax or
penalty on prohibited transactions imposed by such Section 4975 or to any
material liability under Section 502(i) or 502(1) of ERISA that would
reasonably be expected to have a Company Material Adverse Effect.
(d) With respect to any Company Benefit Plan that is an employee
welfare benefit plan, (i) all such Company Benefit Plans are unfunded and
no such Company Benefit Plan is funded through a "welfare benefits fund"
(as such term is defined in Section 419(e) of the Code), and (ii) each such
Company Benefit Plan that is a "group health plan" (as such term is defined
in Section 5000(b)(1) of the Code), complies in all material respects with
the applicable requirements of Section 4980B(f) of the Code, except such
noncompliance as would not reasonably be expected to have a Company
Material Adverse Effect.
Section 3.11. Litigation. Except as disclosed in the Filed Company SEC
Documents or in the Company Disclosure Schedule, as of the date of this
Agreement, there is no suit, action or proceeding pending or, to the Knowledge
of the Company, overtly threatened against the Company or any Company Subsidiary
that, individually or in the aggregate, has had or would reasonably be expected
to have a Company Material
14
Adverse Effect, nor, as of the date of this Agreement, is there any Judgment
outstanding against the Company or any Company Subsidiary that has had or would
reasonably be expected to have a Company Material Adverse Effect.
Section 3.12. Compliance with Applicable Laws. Except as disclosed in the
Filed Company SEC Documents or in the Company Disclosure Schedule, the Company
and the Company Subsidiaries are in compliance with all applicable Laws,
including those relating to occupational health and safety and the environment,
except for instances of noncompliance that, individually and in the aggregate,
have not had and would not reasonably be expected to have a Company Material
Adverse Effect. This Section 3.12 does not relate to matters with respect to
Taxes, which are the subject of Section 3.09.
Section 3.13. Intellectual Property.
(a) Except as disclosed in the Filed Company SEC Documents or in the
Company Disclosure Schedule, the Company and the Company Subsidiaries own,
or are licensed or otherwise possess legally enforceable rights to use all
patents, trademarks, trade names, service marks, copyrights, and any
applications therefor, technology, know-how, computer software programs or
applications, and tangible or intangible proprietary information or
material that are used in the business of the Company and the Company
Subsidiaries as currently conducted, except as would not reasonably be
expected to have a Company Material Adverse Effect.
(b) Except as disclosed in the Filed Company SEC Documents or in the
Company Disclosure Schedule or as would not reasonably be expected to have
a Company Material Adverse Effect, the Company and the Company Subsidiaries
are not in violation of any licenses, sublicenses and other agreements as
to which the Company and/or the Company Subsidiaries are a party and
pursuant to which the Company and/or the Company Subsidiaries are
authorized to use any third-party patents, trademarks, service marks and
copyrights ("Third-Party Intellectual Property Rights"). Except as
disclosed in the Filed Company SEC Documents or in the Company Disclosure
Schedule and except as would not reasonably be expected to have a Company
Material Adverse Effect, as of the date of this Agreement no claims with
respect to the patents, registered and material unregistered trademarks and
service marks, registered copyrights, trade names and any applications
therefor owned by the Company or the Company Subsidiaries (the "Company
Intellectual Property Rights"), any trade secret material to the Company,
or Third-Party Intellectual Property Rights to the extent arising out of
any use, reproduction or distribution of such Third Party Intellectual
Property Rights by or through the Company or the Company Subsidiaries, are
currently pending (or, to the Knowledge of the Company, are overtly
threatened by any Person) against the Company.
(c) To the Company's Knowledge, all patents, registered trademarks,
service marks and copyrights held by the Company or the Company
Subsidiaries
15
are valid and subsisting. Except as disclosed in the Filed Company SEC
Documents or in the Company Disclosure Schedule, to the Company's
Knowledge, there is no material unauthorized use, infringement or
misappropriation of any Company Intellectual Property Rights by any third
party, including any employee or former employee of the Company or the
Company Subsidiaries.
Section 3.14. Brokers. No broker, investment banker, financial advisor or
other Person, other than Xxxxx, Xxxxxxxx & Xxxx, Inc., financial advisor to the
Special Committee, the fees and expenses of which will be paid by the Company,
and XX Xxxxx Securities Corporation, former financial advisor to the Company,
the fees and expenses of which will be paid by the Company under certain
circumstances, is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Company.
Section 3.15. Opinion of Financial Advisor. The Company has received the
opinion of Xxxxx, Xxxxxxxx & Xxxx, Inc., dated the date of this Agreement, to
the effect that, as of such date, the consideration to be received in the Merger
by the holders of Company Common Stock not affiliated with Parent is fair to
such holders from a financial point of view and a copy of the signed opinion has
been provided to Parent.
Section 3.16. Stock Options and Employee Stock Purchase Plan. The Company
has provided Parent with true and complete copies of the Company's 1996 Stock
Plan, 1998 Acquisition Stock Option Plan, 1998 International Stock Option Plan,
Addendum to 1998 International Stock Option Plan, 1998 Directors Stock Plan,
Renaissance Solutions, Inc. 1995 Equity Incentive Plan, 2000 Directors Stock
Plan, GovConnect, Inc. 2000 Stock Incentive Plan, 1996 Eligible Directors Stock
Plan and The Hunter Group, Inc. Employee Non-Qualified Stock Option Plan
(collectively, the "Company Stock Option Plans"), including the form of option
certificates, restricted stock agreements and certain other documents related to
such Company Stock Option Plans, and the Company's 1996 Employee Stock Purchase
Plan (the "Company Stock Purchase Plan"). The Company Board has taken all
actions necessary under the Company Stock Purchase Plan to suspend the
commencement of the Offering Periods (as defined in the Company Stock Purchase
Plan) scheduled to commence on July 2, 2001 and thereafter.
ARTICLE IV
Representations and Warranties of Parent and Sub
Parent and Sub jointly and severally represent and warrant to Company that,
except as indicated in the applicable section of the Disclosure Schedule
furnished by Parent to Company prior to the execution of this Agreement (the
"Buyer Disclosure Schedule") corresponding to the Sections and subsections set
forth below:
16
Section 4.01. Organization, Standing and Power. Each of Parent and Sub is
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has full corporate power and authority
and possesses all governmental franchises, licenses, permits, authorizations and
approvals, in each case whether domestic or foreign, necessary to enable it to
own, lease or otherwise hold its properties and assets and to conduct its
businesses as presently conducted, other than such franchises, licenses,
permits, authorizations and approvals the lack of which, individually and in the
aggregate, has not had and would not reasonably be expected to materially
adversely affect the ability of Parent or Sub to perform their obligations under
this Agreement and consummate the transactions contemplated hereby (a "Parent
Material Adverse Effect").
Section 4.02. Sub.
(a) Since the date of its incorporation, Sub has not, directly or
through a Subsidiary, carried on any business or conducted any operations
other than the execution of this Agreement, the performance of its
obligations hereunder and matters ancillary thereto. Sub was incorporated
solely for the purpose of consummating the transactions contemplated
hereby.
(b) The authorized capital stock of Sub consists of 1,000 shares of
common stock, no par value per share, all of which have been validly
issued, are fully paid and nonassessable and are owned by Parent free and
clear of any Lien.
Section 4.03. Authority; Execution and Delivery; Enforceability. Each of
Parent and Sub has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery by each of Parent and Sub of this Agreement and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and Sub.
Parent, as sole stockholder of Sub, has approved this Agreement. Each of Parent
and Sub has duly executed and delivered this Agreement, and this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or affecting
the enforcement of creditors' rights and by the effect of the principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
Section 4.04. No Conflicts; Consents.
(a) The execution and delivery by each of Parent and Sub of this
Agreement, do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration
of any obligation under, or result in the creation of any Lien upon any of
the properties or assets of Parent or any of
17
its Subsidiaries under, any provision of (i) the charter, by-laws or other
organizational documents of Parent or any of its Subsidiaries, (ii) any
Contract to which Parent or any of its Subsidiaries is a party or by which
any of their respective properties or assets is bound or (iii) subject to
the filings and other matters referred to in Section 4.04(b), any Judgment
or Law applicable to Parent or any of its Subsidiaries or their respective
properties or assets, other than, in the case of clauses (ii) and (iii)
above, any such items that, individually and in the aggregate, have not had
and would not reasonably be expected to have a Parent Material Adverse
Effect.
(b) No Consent of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with respect
to Parent or any of its Subsidiaries in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than (i) if required, compliance
with and filing of a pre-merger notification report under the HSR Act, (ii)
the filing with the SEC of such reports under Section 13 of the Exchange
Act as may be required in connection with this Agreement and the
transactions contemplated hereby, (iii) the filing of the Articles of
Merger with the Secretary of State of The Commonwealth of Massachusetts and
appropriate documents with the relevant authorities of the other
jurisdictions in which Parent and Sub are qualified to do business, (iv)
compliance with and filings under the Laws of any foreign jurisdictions, if
and to the extent required, and (v) such other items that, individually and
in the aggregate, have not had and would not reasonably be expected to have
a Parent Material Adverse Effect.
Section 4.05. Information Supplied. None of the information supplied or to
be supplied by Parent or Sub for inclusion or incorporation by reference in the
Proxy Statement will, at the date it is first mailed to the Company's
stockholders or at the time of the Company Stockholders Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
Section 4.06. Brokers. No broker, investment banker, financial advisor or
other Person, other than XX Xxxxx Securities Corporation is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of the Parent or Sub.
Section 4.07. Financial Ability to Perform. On or before the Closing Date,
Parent will receive as a capital contribution from its equity investors no fewer
than 11,716,070 shares of Company Common Stock and Parent will be the beneficial
owner of such shares of Company Common Stock as of the Effective Time. Parent
and Sub have provided the Company with a commitment letter from XX Xxxxxx
Business Credit Corp. and The Chase Manhattan Bank, dated as of June 15, 2001
(the "Commitment Letter"
18
and the financing to be provided thereunder, the "Financing"). To the Knowledge
of Parent and Sub, the obligation to fund the commitment under the Commitment
Letter is not subject to any condition other than as set forth in the Commitment
Letter. Parent and Sub are not aware of any fact or occurrence that makes any of
the assumptions or statements set forth in the Commitment Letter inaccurate or
that causes the Commitment Letter to be ineffective or that precludes the
satisfaction of the conditions set forth in the Commitment Letter. To the
Knowledge of Parent and Sub, the Commitment Letter has been duly executed by all
parties thereto and is in full force and effect. All commitment and other fees
required to be paid under the Commitment Letter on or prior to the date hereof
have been paid. The aggregate amount of financing committed pursuant to the
Commitment Letter is sufficient to fund all amounts required to be paid by
Parent or Sub in connection with the consummation of the transactions
contemplated hereby, including, but not limited to, the Merger Consideration.
ARTICLE V
Covenants Relating to Conduct of Business
Section 5.01. Conduct of Business.
(a) Conduct of Business by the Company. Except for matters set forth
in Section 5.01 of the Company Disclosure Schedule, expressly agreed to in
writing by Parent or otherwise expressly permitted by this Agreement, from
the date of this Agreement to the earlier to occur of the date of the
termination of this Agreement or the Effective Time, the Company shall, and
shall cause each Company Subsidiary to, conduct the business of the Company
and the Company Subsidiaries taken as a whole in the usual, regular and
ordinary course in substantially the same manner as previously conducted
and use reasonable efforts to preserve intact its current business
organization, keep available the services of its current officers and
employees and keep its relationships with customers, suppliers and others
having business dealings with them. In addition, and without limiting the
generality of the foregoing, except for matters set forth in Section 5.01
of the Company Disclosure Schedule, expressly agreed to in writing by
Parent or otherwise expressly permitted by this Agreement, from the date of
this Agreement to the earlier to occur of the date of the termination of
this Agreement or the Effective Time, the Company shall not, and shall not
permit any Company Subsidiary to, do any of the following without the prior
written consent of Parent, which will not be unreasonably withheld and
which consent will be given or denied within a reasonable time after any
written request for such consent:
(i) (A) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock,
other than dividends and distributions by a direct or indirect
wholly owned Subsidiary of the Company to its parent, (B) split,
combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in
lieu of or in substitution for
19
shares of its capital stock, or (C) purchase, redeem or
otherwise acquire any shares of capital stock of the Company or
any Company Subsidiary or any other securities thereof or any
rights, warrants or options to acquire any such shares or other
securities, except in the case of (B) and (C), as required by
any employee benefit plan of the Company or any Company
Subsidiary or agreement existing as of the date hereof;
(ii) issue, deliver, sell or grant (A) any shares of its capital
stock, (B) any Voting Company Debt or other voting securities,
(C) any securities convertible into or exchangeable for, or any
options, warrants or rights to acquire, any such shares, Voting
Company Debt, voting securities or convertible or exchangeable
securities or (D) any "phantom" stock, "phantom" stock rights,
stock appreciation rights or stock-based performance units,
other than (1) the issuance of Company Common Stock (and
associated Company Rights) upon the exercise of Company Stock
Options outstanding on the date of this Agreement and in
accordance with their present terms, (2) the issuance of Company
Common Stock upon the exercise of Company Rights, (3) the
issuance of Company Common Stock Options pursuant to the Company
Stock Option Plans and consistent with past practices; and (4)
the issuance of Company Common Stock (and associated Company
Rights) pursuant to the Company Stock Purchase Plan;
(iii) amend its articles of organization, by-laws or other comparable
charter or organizational documents;
(iv) acquire or agree to acquire (A) by merging or consolidating
with, or by purchasing a substantial equity interest in or
portion of the assets of, or by any other manner, any business
or any corporation, partnership, joint venture, association or
other business organization or division thereof or (B) any
assets that are material, individually or in the aggregate, to
the Company and the Company Subsidiaries taken as a whole,
except for purchases in the ordinary course of business
consistent with past practice;
(v) except as disclosed in Section 5.01 of the Company Disclosure
Schedule, (A) grant to any current or former director or
executive officer of the Company or any Company Subsidiary any
material increase in compensation, except in the ordinary course
of business consistent with past practices to the extent
required under employment agreements in effect as of the date of
the most recent audited financial statements included in the
Filed Company SEC Documents, (B) grant to any current or former
director or executive officer of the Company or any Company
Subsidiary any
20
increase in severance or termination pay, except to the extent
required under any agreement in effect as of the date of the
most recent audited financial statements included in the Filed
Company SEC Documents, (C) enter into any employment,
consulting, indemnification, severance or termination agreement
with any such director or executive officer, (D) establish,
adopt, enter into or amend in any material respect any
collective bargaining agreement or Company Benefit Plan or (E)
take any action to accelerate any rights or benefits, or make
any material determinations not in the ordinary course of
business consistent with prior practice, under any collective
bargaining agreement or Company Benefit Plan;
(vi) make any change in accounting methods, principles or practices
materially affecting the reported consolidated assets,
liabilities or results of operations of the Company, except
insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor), license or otherwise dispose of or
subject to any Lien any material properties or assets, except
(A) sales of assets or inventory in the ordinary course of
business consistent with past practice and (B) sales or
dispositions of obsolete or worthless assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any
such indebtedness of another Person, issue or sell any debt
securities or warrants or other rights to acquire any debt
securities of the Company or any Company Subsidiary, guarantee
any debt securities of another Person, except for short-term
borrowings from Persons that are not directors, officers or
employees of the Company or any Company Subsidiary incurred in
the ordinary course of business consistent with past practice,
or (B) make any loans to, or investments in, any other Person,
other than to or in the Company or any direct or indirect wholly
owned Subsidiary of the Company or loans or investments in
connection with the sale of the services or products of the
Company and the Company Subsidiaries in the ordinary course of
business consistent with prior practice to Persons that are not
directors, officers or employees of the Company or any Company
Subsidiary, not to exceed $250,000 individually or $2,000,000 in
the aggregate;
(ix) make or agree to make new capital expenditures that are in
excess of $2,000,000 in the aggregate per calendar quarter;
(x) (A) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) in excess of $250,000 individually or
$2,000,000 in the aggregate,
21
other than the payment, discharge or satisfaction, in the
ordinary course of business consistent with past practice or in
accordance with their terms, of liabilities reflected or
reserved against in, or contemplated by, the most recent
consolidated financial statements (or the notes thereto) of the
Company included in the Filed Company SEC Documents or incurred
in the ordinary course of business consistent with past
practice, (B) cancel any indebtedness in excess of $250,000
individually or $2,000,000 in the aggregate or waive any claims
or rights of substantial value or (C) waive the benefits of, or
agree to modify in any manner, any confidentiality, standstill
or similar agreement to which the Company or any Company
Subsidiary is a party;
(xi) enter into, renew, extend, amend, modify, waive any material
provision of, or terminate any lease or similar commitment, in
each case providing for payments in excess of $250,000 over the
term of such lease or commitment (or until the date on which
such lease or commitment may be terminated by the Company
without penalty);
(xii) except as required by their terms, enter into, terminate or
breach in any material respect (or take or fail to take any
action, that, with or without notice or lapse of time or both,
would become a material breach) or materially amend any Contract
filed or that would be required to be filed in any Company SEC
Documents;
(xiii) without prior consultation with Parent (in addition to the
consent requirement described above) commence any litigation or
arbitration other than in accordance with past practice or
settle any litigation or arbitration for money damages or other
relief in excess of $250,000, or if as part of such settlement
Company or any Company Subsidiary would agree to any
restrictions on its operations, or which relates to this
Agreement or the transactions contemplated hereby;
(xiv) elect or appoint any new directors or officers of Company or any
Company Subsidiary;
(xv) take any action that would reasonably be expected to result in
the inability to satisfy the conditions to closing set forth in
Section 7.02(a);
(xvi) liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction; or
(xvii) authorize, or commit or agree to take, any of the foregoing
actions.
22
For the purposes of this Section 5.01, any action taken or approved by G.
Xxxx Xxxxxx will be deemed to have been approved by Parent, regardless of
whether such action or approval is documented in writing.
(b) Advice of Changes. The Company shall use reasonable efforts to
promptly advise Parent orally and in writing of any change or event or
which the Company becomes aware that has or would reasonably be expected to
have a Company Material Adverse Effect.
Section 5.02. No Solicitation by Company.
(a) The Company agrees that, from the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, neither
Company nor any Company Subsidiary shall, nor shall either authorize or
permit any of its respective directors, officers or employees or any
representative retained by it (including any financial advisors) to,
directly or indirectly through another Person, (i) solicit, initiate or
encourage (including by way of furnishing non-public information) any
inquiries or the making of an Acquisition Proposal, or (ii) participate in
any discussions or negotiations regarding any Acquisition Proposal;
provided, however, that if, at any time, the Company Board or the Special
Committee determines in good faith, after consultation with outside legal
counsel, that it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to Company's stockholders under
applicable Law, Company may, in response to a Superior Proposal which was
not solicited by Company in violation of Section 5.02(a) and which did not
otherwise result from a breach of this Section 5.02, and subject to
compliance with the provisions of paragraph (c) below, (x) furnish
information with respect to Company to any Person making such unsolicited
Superior Proposal pursuant to a confidentiality agreement entered into
between such Person and Company in form and substance reasonably
satisfactory to the Company Board or the Special Committee, and (y)
participate in discussions or negotiations regarding such unsolicited
Superior Proposal. For purposes of this Agreement, an "Acquisition
Proposal" means any inquiry, proposal or offer from any Person (i) relating
to any direct or indirect acquisition or purchase of (A) a business that
constitutes 15% or more of the net revenues, net income or the assets of
Company or any Company Subsidiary, or (B) 15% or more of any class of
equity securities of Company or any Company Subsidiary, (ii) relating to
any tender offer or exchange offer that if consummated would result in any
Person beneficially owning 15% or more of any class of equity securities of
Company or any Company Subsidiary, or (iii) relating to any merger,
consolidation, business combination, acquisition, recapitalization,
liquidation, dissolution or similar transaction involving Company or any
Company Subsidiary, in each case, other than the transactions contemplated
by this Agreement. Immediately following the execution and delivery of this
Agreement by the parties hereto, Company will cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted with respect to the foregoing.
23
(b) Except as expressly permitted by this Section 5.02, the Company
Board shall not (i) withdraw or modify, or propose publicly to withdraw or
modify, in a manner adverse to Parent, the approval or recommendation by
the Company Board or Special Committee of this Agreement, the Merger or the
transactions contemplated hereby, (ii) approve or recommend, or propose
publicly to approve or recommend, any Acquisition Proposal, or (iii) cause
Company or any Company Subsidiary to enter into any letter of intent,
agreement in principle, acquisition agreement or other similar agreement
(each, a "Company Acquisition Agreement") related to any Acquisition
Proposal, other than any such agreement entered into concurrently with a
termination pursuant to the next sentence. Notwithstanding the foregoing,
if at any time the Company Board or the Special Committee determines in
good faith, after consultation with outside counsel, that it is necessary
to do so in order to act in a manner consistent with its fiduciary duties
to Company's stockholders under applicable law, subject to compliance with
paragraph (c) below, the Company Board may, in response to a Superior
Proposal which was not solicited by Company in violation of Section 5.02(a)
and which did not otherwise result from a breach of this Section 5.02
(subject to this and the remaining provisions of this Section 5.02), enter
into an agreement with respect to such Superior Proposal and, at the time
of execution of a binding agreement with respect thereto, terminate this
Agreement in accordance with Section 8.01(e). For purposes of this
Agreement, a "Superior Proposal" means any Acquisition Proposal which (i)
the Company Board or the Special Committee determines in good faith is
reasonably likely to be consummated, taking into account the Person making
the proposal and all legal, financial and regulatory aspects of the
proposal, and (ii) the Company Board or the Special Committee believes in
good faith (after consultation with and based upon the advice of its
outside financial advisors) would, if consummated, provide greater value to
Company's stockholders than the transactions contemplated by this
Agreement.
(c) In addition to the obligations of Company as set forth in
paragraphs (a) and (b) of this Section 5.02, Company shall advise Parent
orally within one business day and in writing within two business days of
any Acquisition Proposal in response to which the Company has furnished (or
proposes to furnish) confidential information to the proponent thereof or
has commenced (or proposes to commence) negotiations with the proponent
thereof. Such notice shall include the material terms of any such
Acquisition Proposal (with any such notice referred to as a "Company
Notice"). The Company shall use its reasonable efforts to keep Parent
informed of the status and details (including any change to the terms
thereof) of any such Acquisition Proposal. In addition, in the event
Company intends to enter into a Company Acquisition Agreement relating to a
Superior Proposal, Company will deliver a Company Notice at least 48 hours
prior to entering into such definitive agreement, which Company Notice will
identify and detail the proposed terms of such Superior Proposal.
24
ARTICLE VI
Additional Agreements
Section 6.01. Preparation of Proxy Statement; Stockholders Meeting.
(a) The Company shall, as soon as practicable following the date of
execution of this Agreement, prepare and file with the SEC the Proxy
Statement (as defined in Section 6.01(c)) in preliminary form (provided
that Parent, Sub and their counsel shall be given reasonable opportunity to
review and comment on the Proxy Statement prior to its filing with the
SEC), and each of the Company, Parent and Sub shall use its best efforts to
respond as promptly as practicable to any comments of the SEC with respect
thereto. The Company shall notify Parent promptly of the receipt of any
comments from the SEC or its staff and of any request by the SEC or its
staff for amendments or supplements to the Proxy Statement or for
additional information and shall supply Parent with copies of all
correspondence between the Company or any of its representatives, on the
one hand, and the SEC or its staff, on the other hand, with respect to the
Proxy Statement. If at any time prior to receipt of the Company Stockholder
Approval there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, the Company shall promptly
prepare and mail to its stockholders such an amendment or supplement. The
Company shall use reasonable efforts to cause the Proxy Statement to be
mailed to the Company's stockholders as promptly as practicable after
filing with the SEC. Subject to the fiduciary duties of the Company Board
under applicable law, (i) the Proxy Statement shall contain the
recommendation of the Company Board that the stockholders of the Company
vote to adopt and approve this Agreement and the Merger and (ii) if
requested to do so by Parent at any time prior to the Company Stockholders
Meeting (as defined in Section 6.01(b)) and subject to compliance with
applicable laws, if there shall have been publicly announced an alternative
Acquisition Proposal, the Company Board shall within a reasonable period of
time following such request (and prior to the Company Stockholders Meeting)
publicly reaffirm such recommendation and/or shall publicly announce that
it is not recommending that the stockholders of the Company accept an
alternative Acquisition Proposal, provided that such reaffirmation or
announcement does not require significant delay in the timing of the
Company Stockholders Meeting.
(b) The Company shall, as soon as practicable following the date of
execution of this Agreement, duly call, give notice of, convene and hold a
meeting of its stockholders (the "Company Stockholders Meeting") for the
purpose of seeking the Company Stockholder Approval. Subject to Section
5.02, the Company shall, through the Company Board, recommend to its
stockholders that they give the Company Stockholder Approval. Without
limiting the generality of the foregoing, the Company agrees that its
obligations pursuant to the first sentence of this Section 6.01(b) shall
not be affected by the
25
commencement, public proposal, public disclosure or communication to the
Company of any Acquisition Proposal.
(c) Parent shall cause any and all shares of Company Common Stock
owned by Parent, Sub or any other Subsidiary of Parent to be voted in favor
of the approval of this Agreement.
Section 6.02. Access to Information; Confidentiality. The Company shall,
and shall cause each Company Subsidiary to, afford to Parent, and to Parent's
officers, employees, accountants, counsel, financial advisors and other
representatives, upon reasonable notice, reasonable access during normal
business hours during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records and,
during such period, the Company shall, and shall cause each Company Subsidiary
to, furnish promptly to Parent such information concerning its business,
properties and personnel as Parent may reasonably request; provided, however,
that the Company may withhold the documents and information described in the
Company Disclosure Schedule to the extent required to comply with the terms of a
confidentiality agreement with a third party in effect on the date of this
Agreement; provided further, that the Company shall use reasonable efforts to
obtain, as promptly as practicable, any consent from such third party required
to permit the Company to furnish such documents and information to Parent.
Subject to the requirements of Law, Parent shall, and shall cause its officers,
employees, agents, consultants and affiliates to, hold all information obtained
pursuant to this Agreement in confidence and in the event of termination of this
Agreement for any reason, Parent shall promptly return or destroy all nonpublic
documents obtained from Company and any copies made of such documents for Parent
and all documentation and other material prepared by Parent or its advisors
based on written nonpublic information furnished by Company or its advisors
shall be destroyed.
Section 6.03. Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties shall use all reasonable efforts to take, or
cause to be taken, all reasonable actions, and to do, or cause to be done,
and to assist and cooperate with the other parties in doing, all things
reasonably necessary, proper or advisable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated
hereby, including without limitation (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings
(including filings with Governmental Entities, if any) and the taking of
all reasonable steps as may be necessary to obtain an approval or waiver
from, or to avoid an action or proceeding by, any Governmental Entity, (ii)
the obtaining of all necessary consents, approvals or waivers from third
parties, (iii) the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including, when
reasonable, seeking to have
26
any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed and (iv) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated hereby and to fully carry out the purposes of this Agreement;
provided, however, that the obligations set forth in this sentence shall
not be deemed to have been breached as a result of actions by the Company
expressly permitted under Section 5.02 or 8.01. In connection with and
without limiting the foregoing, the Company and the Company Board shall, at
the request of Parent: (i) take all action within its power reasonably
requested by Parent as necessary to ensure that no state takeover statute
or similar statute or regulation is or becomes applicable to this Agreement
or the transactions contemplated hereby, and (ii) if any state takeover
statute or similar statute or regulation becomes applicable to this
Agreement or the transactions contemplated hereby, take all action within
its power reasonably requested by Parent as necessary to ensure that the
transactions contemplated hereby may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise to
minimize the effect of such statute or regulation on the transactions
contemplated hereby. Nothing in this Agreement shall be deemed to require
any party to waive any substantial rights or agree to any substantial
limitation on its operations or to dispose of any significant asset or
collection of assets.
(b) The Company shall give prompt notice to Parent, and Parent or Sub
shall give prompt notice to the Company, of (i) any representation or
warranty made by it becoming untrue or inaccurate in any material respect
or (ii) the failure by it to comply with or satisfy in any material respect
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement; provided, however, that no such notification shall
affect the representations, warranties, covenants or agreements of the
parties or the conditions to the obligations of the parties under this
Agreement.
Section 6.04. Benefit Plans. Parent shall have sole discretion with respect
to the determination as to whether or when to terminate, merge or continue any
employee benefit plans and programs of Company after the Effective Time. Nothing
herein contained shall be construed to guarantee continued employment to any
Company Employee or change the "at-will" status of any Company Employee.
Section 6.05. Indemnification; D&O Insurance, etc.
(a) Parent shall, to the fullest extent permitted by Law, cause the
Surviving Corporation (from and after the Effective Time) to honor all the
Company's obligations to indemnify, defend and hold harmless (including any
obligations to advance funds for expenses) the current and former directors
and officers of the Company and its Subsidiaries against all losses,
claims, damages or liabilities arising out of acts or omissions by any such
directors and officers occurring prior to the Effective Time to the maximum
extent that such obligations of the Company exist on the date of this
Agreement, whether pursuant to the
27
Company Charter, the Company By-laws, the BCL, individual indemnity
agreements or otherwise, and such obligations shall survive the Merger and
shall continue in full force and effect in accordance with the terms of the
Company Charter, the Company By-laws, the BCL and such individual indemnity
agreements from the Effective Time until the expiration of the applicable
statute of limitations with respect to any claims against such directors or
officers arising out of such acts or omissions. In the event a current or
former director or officer of the Company or any of its Subsidiaries is
entitled to indemnification under this Section 6.05(a), such director or
officer shall be entitled to reimbursement from the Company (from and after
the Effective Time) or the Surviving Corporation (from and after the
Effective Time) for reasonable attorney fees and expenses incurred by such
director or officer in pursuing such indemnification, including payment of
such fees and expenses by the Surviving Corporation or the Company, as
applicable, in advance of the final disposition of such action upon receipt
of an undertaking by such current or former director or officer to repay
such payment if it shall be adjudicated that such current or former
director or officer was not entitled to such payment.
(b) The Company will maintain, through the Effective Time, the
Company's existing directors' and officers' insurance in full force and
effect without reduction of coverage. From and after the Effective Time and
for a period of six years after the Effective Time, Parent shall cause to
be maintained in effect the current policies of directors' and officers'
liability insurance and indemnification maintained by the Company (provided
that Parent may substitute therefor policies with reputable and financially
sound carriers, which policies provide coverage of the types, in the
amounts and containing terms and conditions which are no less advantageous
than those maintained by the Company) with respect to claims arising from
or related to facts or events which occurred at or before the Effective
Time; provided, however, that Parent shall not be obligated to make annual
premium payments for such insurance to the extent such premiums exceed 200%
of the annual premiums paid as of the date hereof by the Company for such
insurance (such 200% amount, the "Maximum Premium"). If such insurance
coverage cannot be obtained at all, or can only be obtained at an annual
premium in excess of the Maximum Premium, Parent shall maintain the most
advantageous policies of directors' and officers' insurance obtainable for
an annual premium equal to the Maximum Premium. The Company represents to
Parent that the Maximum Premium is $1,080,500.
(c) The Articles of Organization of the Surviving Corporation shall
contain the provisions that are set forth in Section 6B of the Company
Charter, which provisions shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner
that would affect adversely the rights thereunder of individuals who at or
at any time prior to the Effective Time were directors, officers, employees
or other agents of the Company.
28
(d) If the Surviving Corporation or any of its successors or assigns
(i) consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or
merger and the continuing or surviving entity does not assume the
obligations of the Surviving Corporation set forth in this Section 6.05, or
(ii) transfers all or substantially all of its properties and assets to any
Person, then, and in each such case, proper provision shall be made so that
the successors and assigns of the Surviving Corporation assume, as a matter
of law or otherwise, the obligations set forth in this Section 6.05.
(e) Parent guarantees that if for any reason the Company or the
Surviving Corporation, as the case may be, shall not meet its obligations
pursuant to this Section 6.05, it shall meet such obligations in full when
and as such obligations arise.
Section 6.06. Fees and Expenses.
(a) Except as otherwise provided in this Agreement or in that certain
letter agreement, dated as of June 13, 2001, between the Company and G.
Xxxx Xxxxxx, and whether or not the transactions contemplated by this
Agreement are consummated, all costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be borne by the
party incurring such costs and expenses.
(b) The Company shall pay to Parent the amount of $2,000,000 by wire
transfer of immediately available funds as reimbursement of Parent's
expenses and as liquidated damages (the "Company Break-Up Fee") in the
event that:
(i) Parent or the Company terminates this Agreement pursuant to
Section 8.01(b)(i) and (x) at the time of such termination there
is a publicly announced Acquisition Proposal from a bona fide
proponent not affiliated or acting in concert with Parent or any
of Parent's Affiliates, which Acquisition Proposal has not been
withdrawn and (y) within six months of such termination the
Company enters into a definitive agreement with respect to any
alternative Acquisition Proposal; or
(ii) Parent or the Company terminates this Agreement pursuant to
Section 8.01(b)(iii) following the Company Stockholders Meeting
if (x) the stockholders of the Company shall have failed to
approve this Agreement and the Merger at the Company
Stockholders Meeting and (y) at the time of the Company
Stockholders Meeting there is a publicly announced Acquisition
Proposal from a bona fide proponent not affiliated or acting in
concert with Parent or any of Parent's Affiliates, which
Acquisition Proposal has not been
29
withdrawn and (z) within six months of such termination the
Company enters into a definitive agreement with respect to any
alternative Acquisition Proposal; or
(iii) Parent terminates this Agreement pursuant to Section 8.01(c); or
(iv) Parent terminates this Agreement pursuant to Section 8.01(d) ;
or
(v) The Company terminates this Agreement pursuant to Section
8.01(e).
The Company Break-Up Fee shall be paid within three (3) business days after
a termination by Parent pursuant to Section 8.01(c) or 8.01(d) or a
termination by the Company pursuant to Section 8.01(e); and in the case of
the events specified in clause (i) or clause (ii) of this Section 6.06(b)
shall be made within three business days of the execution of such
definitive agreement.
Section 6.07. Public Announcements. Parent and Sub, on the one hand, and
the Company, on the other hand, shall consult with each other before issuing,
and provide each other the opportunity to review and comment upon, any press
release or other public statements with respect to the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
Law (including foreign regulations relating to competition), court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
Section 6.08. Actions Respecting Commitment Letters; Financing.
(a) Parent and Sub shall use commercially reasonable efforts to
perform all obligations required to be performed by them in accordance with
and pursuant to the Commitment Letter and shall not amend, terminate or
waive any provisions under such Commitment Letter without the Company's
consent if the effect thereof would be reasonably likely to prevent or
materially delay the consummation of the transactions contemplated hereby.
(b) Parent and Sub shall use their commercially reasonable efforts to
obtain the financing on the terms set forth in the Commitment Letter;
provided, however, that in the event that the sources of debt financing
identified in the Commitment Letter indicate that they are not willing to
consummate the financing, Parent and Sub shall use commercially reasonable
efforts to obtain substitute financing with other nationally recognized
financial institutions ("Substitute Financing"), provided that such
Substitute Financing is not on terms materially more burdensome to Parent
and Sub. Parent and Sub shall from time to time provide such information as
the Company may reasonably request regarding the status of the financing of
the Merger and related negotiations.
30
(c) Parent and Sub shall provide prompt written notice to the Company
of the receipt of notification by the contemplated lender(s) under the
Commitment Letter or in connection with any Substitute Financing, of its or
their unwillingness or intended unwillingness to provide the financing
described in the Commitment Letter and, in each case, the stated reasons
therefor, if known (such written notice to be provided as promptly as
practicable and, in any event, within one business day of Parent or Sub
becoming aware of such event).
(d) Parent and Sub shall not, at any time prior to the earlier of the
Effective Time or six months after termination of this Agreement in
accordance with its terms, directly or indirectly: (i) declare, set aside
or pay any dividends on, or make any other distributions in respect of, any
of its capital stock, (ii) purchase, redeem or otherwise acquire any shares
of capital stock of Parent or Sub or any other securities thereof or any
rights, warrants or options to acquire any such shares or other securities,
(iii) create or contribute cash or other property to any subsidiary, (iv)
make any loans to or investments in any Person (other than the acquisition
of shares of the Company through the transactions contemplated hereby) or
(v) make any other payments or distributions of cash or other property to
any of its Affiliates.
(e) Company shall provide all information reasonably requested by
Parent or Sub in connection with the financing to be supplied pursuant to
the Commitment Letter.
Section 6.09. Rights Agreement. The Company Board shall take all action
requested in writing by Parent in order to render the Company Rights
inapplicable to the transactions contemplated hereby. Except as approved in
writing by Parent, the Company Board shall not (i) amend the Company Rights
Agreement, (ii) redeem the Company Rights or (iii) take any action with respect
to, or make any determination under, the Company Rights Agreement, in each case
in a manner adverse to Parent or Sub.
Section 6.10. Stockholder Litigation. The Company shall give Parent the
opportunity to participate in the defense or settlement of any stockholder
litigation against the Company and/or its directors relating to this Agreement
or the transactions contemplated hereby; provided, however, that Parent shall
have the right to prevent the Company from entering into any such settlement
without Parent's consent, which consent shall not be unreasonably withheld or
delayed, if Parent agrees to indemnify the Company and each director of the
Company for the amount of its, his or her liability, if any, arising from the
underlying claim, net of any insurance proceeds received by such Person, that is
in excess of the amount for which such Person would have been liable under such
settlement.
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ARTICLE VII
Conditions Precedent
Section 7.01. Conditions to Each Party's Obligation To Effect The Merger.
The respective obligation of each party to effect the Merger is subject to the
satisfaction or express written waiver on or prior to the Closing Date of the
following conditions:
(a) Stockholder Approval. The Company shall have obtained the Company
Stockholder Approval.
(b) Antitrust. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act, if the HSR Act is applicable,
shall have been terminated or shall have expired. Any consents, approvals
and filings under any other foreign antitrust Law the absence of which
would prohibit the consummation of Merger, shall have been obtained or
made.
(c) No Injunctions or Restraints. No statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or
permanent injunction or other order enacted, entered, promulgated, enforced
or issued by any Governmental Entity or other legal restraint or
prohibition preventing the consummation of the Merger shall be in effect;
provided, however, that prior to asserting this condition each of the
parties shall have used all reasonable efforts to prevent the entry of any
such injunction or other order and to appeal as promptly as possible any
such injunction or other order that may be entered.
Section 7.02. Conditions Precedent to Parent's and Sub's Obligations.
Parent and Sub shall be obligated to effect the Merger only if each of the
following conditions is satisfied at or prior to the Closing Date, unless any
such condition is waived in writing by Parent:
(a) Representations and Warranties. The representations and warranties
of Company set forth in this Agreement shall be true and correct in all
material respects (without giving duplicative effect to any materiality
qualification contained in the applicable representation or warranty) as of
the Closing Date with the same force and effect as though made again at and
as of the Closing Date, except for any representations and warranties that
address matters only as of a particular date (which shall remain true and
correct in all material respects (without giving duplicative effect to any
materiality qualification contained in the applicable representation or
warranty) as of such date).
(b) Performance of Obligations of Company. Company shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
32
(c) Absence of Material Adverse Changes. There shall not have occurred
any change in the business, assets, financial condition or results of
operations of Company or any of its Subsidiaries which has had, or is
reasonably likely to have, individually or in the aggregate, a Company
Material Adverse Effect.
(d) Financing. The financing contemplated in the Commitment Letter, or
the Substitute Financing, shall have been consummated.
Section 7.03. Conditions to Obligation of Company. Company shall be
obligated to effect the Merger only if each of the following conditions is
satisfied at or prior to the Closing Date, unless any such condition is waived
in writing by Company:
(a) Representations and Warranties. The representations and warranties
of Parent and Sub set forth in this Agreement shall be true and correct in
all material respects (without giving duplicative effect to any materiality
qualification contained in the applicable representation or warranty) as of
the Closing Date with the same force and effect as though made again at and
as of the Closing Date, except for any representations and warranties that
address matters only as of a particular date (which shall remain true and
correct in all material respects (without giving duplicative effect to any
materiality qualification contained in the applicable representation or
warranty) as of such date).
(b) Performance of Obligations of Parent and Sub. Parent and Sub shall
each have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
ARTICLE VIII
Termination, Amendment and Waiver
Section 8.01. Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after receipt of Company
Stockholder Approval:
(a) by mutual written consent of Parent, Sub and the Company;
(b) by either Parent or the Company:
(i) if the Merger is not consummated on or before December 31, 2001;
(ii) if any Governmental Entity shall have issued an order, decree or
ruling or takes any other action enjoining, restraining or
otherwise prohibiting the Merger and such order, decree, ruling
or other action shall have become final and nonappealable; or
33
(iii) if the stockholders of the Company shall fail to approve this
Agreement and the Merger at the Company Stockholders Meeting;
(c) by Parent, if (i) the representations and warranties of the
Company set forth in this Agreement are not true and correct in all
material respects (without giving duplicative effect to any materiality
qualification contained in the applicable representations and warranties)
as of the date hereof (or, in the case of any representations and
warranties that address matters only as of a particular date other than the
date hereof, as of such other specified date) and such misrepresentations
cannot be or have not been cured within the 30 day period (or such longer
period as may be expressly permitted by Parent) following the giving by
Parent of written notice to the Company of such breach or (ii) the Company
violates or fails to perform in any material respect its covenants
contained in Section 5.02, which breach or failure to perform cannot be or
has not been cured within the 30 day period (or such longer period as may
be expressly permitted by Parent) following the giving by Parent of written
notice to the Company of such violation or breach or (iii) the Company
violates or fails to perform in any material respect any of its other
covenants contained in this Agreement, which breach or failure to perform
would give rise to the failure of a condition set forth in Section 7.02(b)
and cannot be or has not been cured within the 30 day period (or such
longer period as may be expressly permitted by Parent) following the giving
by Parent of written notice to the Company of such violation or breach;
(d) by Parent, if the Company Board/Special Committee (i) withdraws or
modifies in a manner adverse to Parent or Sub, or publicly resolves to
withdraw or modify in a manner adverse to Parent or Sub, its approval or
recommendation of this Agreement or the Merger, (ii) fails to recommend to
the Company's stockholders that they approve the Merger and give the
Company Stockholder Approval, (iii) publicly approves or recommends, or
resolves to approve or recommend, any alternative Acquisition Proposal or
(iv) in violation of the provisions of Section 6.01(b), fails to reconfirm
the recommendation referred to in clause (ii) above if requested in
accordance with the applicable provisions of Section 6.01(b), or fails to
publicly announce (in accordance with the applicable provisions of Section
6.01(b)) that the Company Board/Special Committee is not recommending any
alternative Acquisition Proposal;
(e) by the Company pursuant to Section 5.02;
(f) by the Company, if either (i) the representations and warranties
of Parent and Sub set forth in this Agreement are not true and correct in
all material respects (without giving duplicative effect to any materiality
qualification contained in the applicable representations and warranties)
as of the date hereof (or, in the case of any representations and
warranties that address matters only as of a particular date other than the
date hereof, as of such other specified date) and such misrepresentations
cannot be or have not been cured within the 30 day period (or such longer
period as may be expressly permitted by the Company)
34
following the giving by the Company of written notice to Parent of such
breach or (ii) Parent or Sub violates or fails to perform in any material
respect any of their covenants contained in this Agreement, which breach or
failure to perform would give rise to the failure of a condition set forth
in Section 7.03(b) and cannot be or has not been cured within the 30 day
period (or such longer period as may be expressly permitted by the Company)
following the giving by the Company of written notice to Parent of such
violation or breach; or
(g) by either the Company or Parent if any of the events specified in
Section 6.08(c) occurs and notwithstanding the commercially reasonable
efforts of Parent and Sub to secure Substitute Financing as contemplated by
Section 6.08(b) Parent and Sub are not able to obtain such Substitute
Financing within thirty (30) days of delivery of notice pursuant to Section
6.08(c).
Section 8.02. Procedure and Effect of Termination. In the event of the
termination of this Agreement by Company or Parent as provided in Section 8.01,
this Agreement shall forthwith become void and have no effect other than Section
3.14, Section 4.06, Section 6.02, Section 6.06, Section 6.08(d), this Section
8.02 and Article IX, which provisions shall survive such termination, and all
obligations of the parties hereunder (other than pursuant to such enumerated
provisions) shall terminate without any liability or obligation on the part of
Parent, Sub or the Company, to any party, except that such termination will not
affect the respective rights or obligations of the parties with respect to any
breach of any representation, warranty or covenant set forth in this Agreement
prior to such termination.
Section 8.03. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties. This Agreement
may be so amended by the parties at any time before or after receipt of the
Company Stockholder Approval; provided, however, that after receipt of the
Company Stockholder Approval, there shall be made no amendment that by Law
requires further approval by the stockholders of the Company without the further
approval of such stockholders; and provided, further, that after this Agreement
is adopted by the Company's stockholders, no such amendment or modification
shall be made that reduces the amount or changes the form of Merger
Consideration or otherwise materially and adversely affects the rights of the
Company's stockholders hereunder, without the further approval of such
stockholders.
Section 8.04. Extension; Waiver. At any time prior to the Effective Time,
the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) subject to the proviso of
Section 8.03, waive compliance with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
35
Section 8.05. Procedure for Termination, Amendment, Extension or Waiver. A
termination of this Agreement, an amendment of this Agreement pursuant to
Section 8.03 or an extension or waiver pursuant to Section 8.04 shall, in order
to be effective, require in the case of Parent, Sub or the Company, action by
its Board of Directors or the duly authorized designee of its Board of
Directors.
ARTICLE IX
General Provisions
Section 9.01. Nonsurvival of Representations and Warranties. Except as
provided in the last sentence of this Section 9.01, none of the representations,
warranties and covenants in this Agreement (including any rights arising out of
any breach of such representations, warranties and covenants) or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 9.01 (including any rights arising out of any breach of such
representations and warranties) shall not limit any covenant or agreement of the
parties which by its terms contemplates performance after the Effective Time.
Section 9.02. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given (i) seven days after mailing by certified mail, (ii) when delivered by
hand, (iii) upon confirmation of receipt by telecopy or (iv) one business day
after sending by overnight delivery service, to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to Company:
Renaissance Worldwide, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
36
(b) If to Parent or Sub:
c/o G. Xxxx Xxxxxx
Renaissance Worldwide, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
With copies to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Section 9.03. Definitions. For purposes of this Agreement:
An "Affiliate" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person. As used in this definition the
term "control" (including the terms "controlled by" and "under common control
with") means, with respect to the relationship between or among two or more
Persons, the possession, directly or indirectly or as trustee or executor, of
the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
A "Company Material Adverse Effect" means any change, effect, event,
occurrence, state of facts or development that is materially adverse to the
business, assets, financial condition, or results of operations of the Company
and the Company Subsidiaries, or that materially and adversely affects the
ability of the Company to perform its obligations under this Agreement and
consummate the transactions contemplated hereby; provided however, that none of
the following shall be deemed in themselves, either alone or in combination, to
constitute, and none of the following shall be taken into account in determining
whether there has been or will be a Company Material Adverse Effect: (a) any
change in the market price or trading volume of Company's stock after the date
hereof, (b) any adverse change, effect, event, occurrence, state of facts or
development to the extent attributable to the announcement or pendency of the
transactions contemplated hereby (including any cancellations of or delays in
customer orders, any reduction in sales, any disruption in supplier,
distributor, partner or similar relationships or any loss of employees); (c) any
adverse change, effect, event, occurrence, state of facts or development
attributable to conditions affecting the industries in which Company
participates, the economy of the United States as a whole or foreign economies
in any locations where the Company or any Company Subsidiary has
37
material operations or sales which does not have a disproportionate effect on
the Company and its Subsidiaries, (d) any adverse change, effect, event,
occurrence, state of facts or development arising from or relating to compliance
with the terms of, or the taking of any action required by, this Agreement, or
(e) any adverse change, effect, event, occurrence, state of facts or development
arising from any action taken by Parent, Sub or any of their respective
directors, officers, employees, agents or Affiliates.
A "Person" means any individual, firm, corporation, partnership, company,
limited liability company, trust, joint venture, association, Governmental
Entity or other entity.
A "Subsidiary" of any Person means another Person, an amount of the voting
securities, other voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its Board of Directors or other
governing body (or, if there are no such voting interests, 50% or more of the
equity interests of which) is owned directly or indirectly by such first Person.
"to the Knowledge" of any specified corporation means to the actual
knowledge of any current director or executive officer of such corporation (and,
in the case of the Parent or Sub, shall include, without limitation, the actual
knowledge of G. Xxxx Xxxxxx.
Section 9.04. Definitions Cross Reference Table. The following terms
defined elsewhere in this Agreement in the Sections set forth below shall have
the respective meanings therein defined:
Term Definition
"Affiliate" Section 9.03
"Agreement" Preamble
"Appraisal Provisions" Section 2.01(d)
"Appraisal Shares" Section 2.01 (d)
"Acquisition Proposal" Section 5.02(a)
"Articles of Merger" Section 1.03
"BCL" Section 1.03
"Buyer Disclosure Schedules" Article IV
"Certificates" Section 2.02(b)
"Closing" Section 1.02
"Closing Date" Section 1.04
"Code" Section 3.10(b)
"Commitment Letter" Section 4.07
"Company" Preamble
"Company Acquisition Agreement" Section 5.02(b)
"Company Benefit Plans" Section 3.10(a)
"Company Board" Section 3.04(b)
"Company Break-Up Fees" Section 6.06(b)
38
"Company By-laws" Section 3.01
"Company Capital Stock" Section 3.03
"Company Charter" Section 3.01
"Company Common Stock" Preamble
"Company Disclosure Schedule" Article III
"Company Intellectual Property Rights" Section 3.13(b)
"Company Material Adverse Effect" Section 9.03
"Company Notice" Section 5.02(c)
"Company Rights" Section 3.03
"Company Rights Agreement" Section 3.03
"Company SEC Documents" Section 3.06
"Company Stock Options" Section 3.03
"Company Stock Option Plan" Section 3.16
"Company Stock Purchase Plan" Section 3.16
"Company Stockholder Approval" Section 3.04(c)
"Company Stockholders Meeting" Section 6.01(b)
"Company Subsidiaries" Section 3.01
"Consent" Section 3.05(b)
"Contract" Section 3.05(a)
"Effective Time" Section 1.05
"ERISA" Section 3.10(a)
"Exchange Act" Section 3.06
"Exchange Fund" Section 2.02(a)
"Filed Company SEC Documents" Section 3.08
"Financing" Section 4.07
"GAAP" Section 3.06
"Governmental Entity" Section 3.05(b)
"HSR Act" Section 3.05(b)
"Judgment" Section 3.05(a)
"Law" Section 3.05(a)
"Liens" Section 3.02
"Maximum Premium" Section 6.05(b)
"Merger" Preamble
"Merger Consideration" Section 2.01(c)
"Parent" Preamble
"Parent Material Adverse Effect" Section 4.01
"Paying Agent" Section 2.02(a)
"Person" Section 9.03
"Proxy Statement" Section 3.05(b)
"SEC" Section 3.05(b)
"Securities Act" Section 3.06
"Series A Preferred Stock" Section 3.03
"Special Committee" Recitals
"Sub" Preamble
"Subsidiary" Section 9.03
"Substitute Financing" Section 6.08(b)
39
"Superior Proposal" Section 5.02(b)
"Support Agreement" Recitals
"Surviving Corporation" Section 1.01
"Tax Return" Section 3.09(d)
"Taxes" Section 3.09(d)
"Third-Party Intellectual Property Rights" Section 3.13(b)
"to the Knowledge" Section 9.03
"Voting Company Debt" Section 3.03
Section 9.05. Interpretation. When a reference is made in this Agreement to
a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
Section 9.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
Section 9.07. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 9.08. Entire Agreement; No Third-Party Beneficiaries. This
Agreement, taken together with the Company Disclosure Schedule, the Support
Agreement and that certain letter agreement, dated as of June 13, 2001, between
the Company and G. Xxxx Xxxxxx, (a) constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the transactions contemplated hereby and (b) except
for the provisions of Article II, Section 6.04 and Section 6.05, is not intended
to confer upon any Person other than the parties any rights or remedies.
Section 9.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
40
Section 9.10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, except that Sub may assign, in its sole
discretion, any of or all its rights, interests and obligations under this
Agreement to Parent or to any direct or indirect wholly owned Subsidiary of
Parent, but no such assignment shall relieve Sub of any of its obligations under
this Agreement. Any purported assignment without such consent shall be void.
Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
Section 9.11. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Massachusetts state court or
any Federal court located in The Commonwealth of Massachusetts, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
Personal jurisdiction of any Massachusetts state court or any Federal court
located in The Commonwealth of Massachusetts in the event any dispute arises out
of this Agreement or any transactions contemplated hereby, (b) agrees that it
will not attempt to deny or defeat such Personal jurisdiction by motion or other
request for leave from any such court, (c) agrees that it will not bring any
action relating to this Agreement or any transactions contemplated hereby in any
court other than any Massachusetts state court or any Federal court sitting in
The Commonwealth of Massachusetts and (d) waives any right to trial by jury with
respect to any action related to or arising out of this Agreement or any
transactions contemplated hereby.
Section 9.12. Consents. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing in a
manner consistent with the requirements for a waiver of compliance as set forth
in Sections 8.04 and 8.05. Sub hereby agrees that any consent or waiver of
compliance given by Parent hereunder shall be conclusively binding upon it,
whether given expressly on its behalf or not.
Section 9.13. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 9.14. Parent Guarantee.
(a) Parent hereby agrees to cause Sub and the Surviving Corporation to
perform in full all of their obligations (including, without limitation,
the obligation to pay any amounts due pursuant to this Agreement). The
Parent hereby further unconditionally guarantees the full and punctual
payment of all amounts payable by Sub or the Surviving Corporation under
this Agreement.
41
Upon failure by Sub or the Surviving Corporation to pay punctually any such
amount, Parent shall forthwith on demand pay the amount not so paid.
(b) The obligations of the Parent hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by any change in the
corporate existence, structure or ownership of Sub or the Surviving
Corporation, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting Sub or the Surviving Corporation or their assets or
any resulting release or discharge of any obligation of the Sub or the
Surviving Corporation contained in this Agreement.
(c) The Parent irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person or entity
against the Sub or the Surviving Corporation or any other person or entity.
42
IN WITNESS WHEREOF, Parent, Sub and Company have caused this Agreement and Plan
of Merger to be executed as an instrument under seal as of the date first
written above by their respective officers thereunto duly authorized.
REGISTRY HOLDING COMPANY, INC.
By /s/ G. Xxxx Xxxxxx
---------------------
Name: G. Xxxx Xxxxxx
Title: President
REDWOOD ACQUISITION CORP.
By /s/ G. Xxxx Xxxxxx
---------------------
Name: G. Xxxx Xxxxxx
Title: President
By /s/ G. Xxxx Xxxxxx
---------------------
Name: G. Xxxx Xxxxxx
Title: Treasurer
RENAISSANCE WORLDWIDE, INC.
By /s/ Xxxxxxxxxxx X. X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. X. Xxxxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
43
